NHL Motion to Dismiss Concussion Litigation

8/10/2019 NHL Motion to Dismiss Concussion Litigation

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

IN RE: NATIONAL HOCKEY LEAGUE )PLAYERS CONCUSSION INJURY ) MDL No. 14-2551 (SRN/JSM)LITIGATION )

)This Document Relates to: ALL ACTIONS )

______________________________________ )

DEFENDANT NATIONAL HOCKEY LEAGUES MEMORANDUM OF LAW IN

SUPPORT OF MOTION TO DISMISS MASTER COMPLAINT BASED ON

LABOR LAW PREEMPTION

CASE 0:14-md-02551-SRN-JSM Document 39 Filed 11/18/14 Page 1 of 45


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................. iii

PRELIMINARY STATEMENT ......................................................................................... 1

BACKGROUND ................................................................................................................. 2

ARGUMENT ....................................................................................................................... 7

PLAINTIFFS CLAIMS ARE PREEMPTED BY SECTION 301 OF THE LMRA ......... 7

A. Section 301 of the LMRA preempts state-law claims that are eitherfounded on rights created by a CBA or that substantially depend on

an interpretation of a CBA. ........................................................................... 7

B. Plaintiffs negligence claims are preempted under both prongs of theSection 301 analysis. ..................................................................................... 8

1. All of the duties that Plaintiffs claim the NHL voluntarilyassumed arise under agreements that were collectively bargainedwith the Union. ................................................................................... 9

`a. The collectively-bargained helmet requirement. .................. 11

b. The collectively-bargained Concussion Program. ................ 12

c. The collectively-bargained provisions concerning PlayingRules and discipline. ............................................................. 14

2. Because the alleged duties that underlie Plaintiffs negligence claimsarise under collectively-bargained agreements, those claims are

preempted. ........................................................................................ 15

3. Because the collectively-bargained agreements must be interpreted

to resolve Plaintiffs negligence claims, those claims are preempted.18

a. Plaintiffs claims are inextricably intertwined with theCBA provisions concerning Player health and safety. .......... 21

b. Plaintiffs claims require interpretation of thecollectively-bargained Concussion Program. ....................... 23



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c. The Court would be required to interpret collectively-bargained provisions concerning Playing Rules and Playerdiscipline. .............................................................................. 26

d. Plaintiffs claims are dependent on an interpretation of theCBAs management rights clause. ........................................ 29

C. Plaintiffs Fraud And Negligent Misrepresentation Claims Are PreemptedUnder Both Prongs Of The Section 301 Analysis. ..................................... 31

D. Once Held Preempted, All Claims Must Be Dismissed. ............................. 35

CONCLUSION ................................................................................................................. 38



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TABLE OF AUTHORITIES

Cases Page(s)

Aguilera v. Pirelli Armstrong Tire Corp.,

223 F.3d 1010, 1016 (9th Cir. 2000) ...........................................................................34

Allis-Chalmers Corp. v. Lueck,471 U.S. 202 (1985) ..............................................................................................passim

Atwater v. NFL Players Assn,626 F.3d 1170 (11th Cir. 2010) .....................................................................................9

Bogan v. GM,500 F.3d 828 (8th Cir. 2007) .......................................................................................31

Brodkorb v. Minnesota,No. Civ. 12-1958, 2013 U.S. Dist. LEXIS 19416 (D. Minn. 2013) ..............................3

Caterpillar, Inc. v. Williams,482 U.S. 386 (1987) ..............................................................................................passim

Chapple v. National Starch & Chem. Co.,178 F.3d 501 (7th Cir. 1999) .......................................................................................31

Christian v. NHL,No. 0:14-cv-01140-SRN-JSM (D. Minn. filed Apr. 15, 2014) .....................................4

Conrad v. Xcel Energy, Inc.,No. 12-CV-2819, 2013 U.S. Dist. LEXIS 49840 (D. Minn. Apr. 5,2013) ............................................................................................................................36

DAmato v. Southern Conn.,No. 3:97 CV 838, 2000 U.S. Dist. LEXIS 18960 (D. Conn. Sept. 8,2000) ..............................................................................................................................3

Dryer v. Los Angeles Rams,220 Cal. Rptr. 807 (Cal. 1985) .......................................................................................4

Duerson v. NFL, Inc.,No. 12 C 2513, 2012 U.S. Dist. LEXIS 66378(N.D. Ill. May 11, 2012) .............................................................. 8,9,19, 20,21, 22, 26

Finney v. GDX Auto.,135 Fed. Appx. 888 (8th Cir. 2005) ...........................................................................36



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Granite Rock Co. v. Int'l Bhd. of Teamsters,561 U.S. 287 (2010) .....................................................................................................35

Green v. Arizona Cardinals Football Club,No. 4:14CV461, 2014 WL 1920468 (E.D. Mo. May 14, 2014) ....................................9

Greenly v. Sara Lee Corp.,No. Civ. S-06-1775, 2006 U.S. Dist. LEXIS 90868 (E.D. Cal. Dec. 13,2006) ..............................................................................................................................3

Holmes v. NFL,939 F. Supp. 517 (N.D. Tex. 1996) ...............................................................................9

Intl Bhd. Electrical Workers v. Hechler,481 U.S. 851 (1987) .................................................................................................7,18

Leeman v. NHL,No. 1:13-cv-01856-KBJ (D.D.C. filed Nov. 25, 2013) .................................................4

Library of Cong. v. FLRA,699 F.2d 1280 (D.C. Cir. 1983) ............................................................................. 10,11

Local Union 453 of IBEW v. Independent Broad. Co.,849 F.2d 328 (8th Cir. 1988) .......................................................................................36

Maxwell v. Natl Football League Mgt. Council,No. CV 11-08394 (C.D. Cal. Dec. 8, 2011) ...................................................................9

Metropolitan Edison Co. v. NLRB,460 U.S. 693 (1983) .....................................................................................................30

Nelson ex. rel. Boogaard v. Natl Hockey League,2014 WL 656793 (N.D. Ill. Feb. 20, 2014) .............................................................9,17

NLRB v. Gulf Power Co.,384 F.2d 822 (5th Cir. 1967) .......................................................................................10

NLRB v. Katz,

369 U.S. 736 (1962) .....................................................................................................11

Panayi v. Northern Ind. Pub. Serv. Co.,109 F. Supp. 2d 1012 (N.D. Ind. 2000) .......................................................................31

Republic Steel Corp. v. Maddox,379 U.S. 650 (1965) .....................................................................................................36



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Retail Clerks Intl Assn v. Lion Dry Goods, Inc.,369 U.S. 17 (1962) ................................................................................................. 11,12

Rudnay v. Kansas City Chiefs Football,100 Lab. Cas. ((W.D. Mo. 1983) ...................................................................................4

Sherwin v. Indianapolis Colts, Inc.,752 F. Supp. 1172 (1990)...............................................................................................4

Sherwin v. Indianapolis Colts, Inc.,752 F. Supp. 1172 (N.D.N.Y. 1990) ........................................................................9,34

Steelworkers of America v. Warrior & Gulf Navigation Co.,363 U.S. 574 (1960) .....................................................................................................36

Stringer v. NFL,

474 F. Supp. 2d 894 (S.D. Ohio 2007) ..............................................................9,20, 21

Teamsters Local Union No. 688 v. Industrial Wire Prods.,186 F.3d 878 (8th Cir. 1999) .......................................................................................36

Textile Workers Union v. Lincoln Mills of Alabama,353 U.S. 448 (1957) .......................................................................................................7

Thunander v. Uponor, Inc.,887 F. Supp. 2d 850 (D. Minn. 2012) ........................................................................3,5

Trs. of the Twin City Bricklayers Fringe Benefit Funds v. SuperiorWaterproofing, Inc.,450 F.3d 324 (8th Cir. 2006) .............................................................................8,33,36

United Steelworkers of Am. v. Rawson,495 U.S. 362 (1990) .....................................................................................8,16,17,18

Williams v. NFL,582 F.3d 863 (8th Cir. 2009) ...................................................................8,9,18, 19,33



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STATUTES AND OTHER AUTHORITIES

Fed. R. Civ. P. 12(b)(6) ...................................................................................................1,3

Section 301 of the Labor Management Relations Act, 29 U.S.C. 185 ....................passim

National Labor Relations Act (29 U.S.C. 151, et seq.) ..................................................10



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PRELIMINARY STATEMENT

Plaintiffs, former NHL Players, purport to assert state law tort claims against the

National Hockey League (NHL or the League). The NHL now moves to dismiss the

Master Administrative Complaint (MAC or Complaint) pursuant to Fed. R. Civ. P.

12(b)(6) on the ground that the claims are preempted by Section 301 of the Labor

Management Relations Act, 29 U.S.C. 185 (Section 301).

For more than forty years, the National Hockey League Players Association

(NHLPA or the Union) has been the exclusive collective bargaining representative of

all NHL Players. During that time, the League and the Union have reached collectively-

bargained agreements concerning virtually every term or condition of employment

relating to Player health and safety, including the helmet requirement, rules concerning

removal from and return to work following an injury, neuropsychological testing of

Players, Playing Rules on body checking, fighting and hits to the head, and disciplinary

procedures. Seventeen years ago, the League and the Union jointly negotiated and

created a Concussion Program to address the issue of head injuries specifically.

It is precisely because of this rich history of collective bargaining that Plaintiffs

tort claims for alleged hockey-related injuries are preempted by Section 301. Those

claims are based on duties relating to Player health and safety that arise, if at all, out of

agreements the parties reached through collective bargaining. Plaintiffs claims also

cannot be resolved without interpreting those agreements. For both reasons, the claims

are preempted by Section 301 and must be dismissed.



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Although Plaintiffs endeavored to draft a Complaint that elided the role of labor

law, they did not and could not succeed because of the Unions pervasive role in

negotiating health and safety issues on behalf of the Players it represents. As the

Complaint alleges,

.NHL Commissioner Gary Bettman recently stated, We have, on ourown, a long history, going back to 1997, of taking concussions veryseriously. He added, We spend a lot of time, money and effortworking with the players association on player safety. (MAC, 221)

.The NHL has admitted that it has always assumed the duty to care

for player safety. Deputy Commissioner Daly has publicly stated, [TheNHL is] completely satisfied with the responsible manner in which theleague and the players association havemanaged player safety over

time, including with respect to head injuries and concussions.This issomething that we have alwaystreated as important and will continue totreat as important. (MAC, 345, emphasis in original)

Labor preemption is properly before the Court on this motion to dismiss. The time

to resolve the issue of preemption is now, at the outset of the case, because it is a

threshold issue that is dispositive.

BACKGROUND

The NHL is an unincorporated association of thirty Member Clubs that operates

the major professional hockey league in North America. (MAC, 158) Plaintiffs are

former Players for one or more Member Clubs. (MAC, 1, 27, 40, 52, 59, 67, 74)

Since 1967, the NHLPA has been the exclusive collective bargaining

representative for all Players employed by NHL Clubs. (See Declaration of William

Daly,Exh. 1, p. 1) The first fully integrated collective bargaining agreement covered the



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period September 15, 1975 through September 15, 1980, and the parties thereafter

entered into successor agreements (CBA).1 The Plaintiffs were employed by one or

more NHL Clubs (not the NHL) while at least one CBA was in effect. (MAC, 1, 27,

40, 52, 59, 67, 74)

Every Player who is employed by a Member Club must sign a Standard Players

Contract (SPC). The SPC, which has been attached as an exhibit to every CBA, sets

forth standardized terms and conditions of employment that have been collectively-

bargained between the League and the Union, while allowing the Player and the NHL

Club to agree on certain subjects, such as compensation and duration.2

1 The CBAs from 1975 to the present are attached to the Affidavit of William Daly.The Court can consider the CBAs in deciding this motion. Although the MAC omits anyreference to the CBAs, they may be considered on this motion because they are integralto Plaintiffs claims, their authenticity is not in dispute and they are embraced by the

pleadings. Brodkorb v. Minnesota, No. Civ. 12-1958, 2013 U.S. Dist. LEXIS 19416, at*9-10 (D. Minn. 2013) (a court may consider documents necessarily embraced by the

pleadings.); Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 859 (D. Minn. 2012)(citations omitted) ([w]hen considering a Rule 12 motion, the court generally mustignore materials outside the pleadings, but it may consider some materials that are partof the public record or do not contradict the complaint); Greenly v. Sara Lee Corp.,No.Civ. S-06-1775, 2006 U.S. Dist. LEXIS 90868 at *8 (E.D. Cal. Dec. 13, 2006) (rejectingnotion that plaintiff can artfully plead so as to avoid mentioning the [collective

bargaining] agreement, thereby avoiding federal preemption issues.);DAmato v.Southern Conn., No. 3:97 CV 838, 2000 U.S. Dist. LEXIS 18960 at *7 (D. Conn. Sept. 8,2000) (it is appropriate to consider the CBA in ruling on a Rule 12(b)(6) motion todismiss raising issues of LMRA preemption; [w]hen a party chooses not to attach to the

complaint or incorporate by reference a document upon which it relies and which isintegral to the complaint, the Court may take that document into consideration withoutconverting the motion to dismiss into one for summary judgment.)

2 The SPC is incorporated into the 2012 CBA by Article 11, and is also Exhibit 1thereto. See also 1975 CBA, Art. 9.03, p. 29; 1981 CBA, Art. 9.03, Exh. 2E; 1984 CBA,Art. 9.03, Exh. 8; 1988 CBA, Art. 9.03, Exh. 13; 1995 CBA, Art. 11, Exh. 1; 2005 CBA,Art. 11, Exh. 1.



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In addition to the SPCs, the CBA cross-references and incorporates other

collectively-bargained agreements between the NHL and the Union, as well as the NHL

Constitution and By-Laws (League Rules) and the League Playing Rules3that

govern the manner in which the game is played.

Taken together, the CBA and these other collectively-bargained agreements

comprehensively govern Player health and safety issues, including: (i) the allocation of

responsibility among the Clubs, the Clubs medical staffs, and the Players themselves for

diagnosing and treating Player injuries, and making fitness to play decisions; (ii) a

Players right to receive a copy of his medical records from his Club and an end of season

physical examination that shall document all injuries that may require future medical or

dental treatment either in the near future or post-career (see infraat 22, 35); (iii) a

Players right to compensation and benefits in the event of a hockey-related injury; (iv)

how the game is to be played, including what conduct is prohibited (and what penalties

Both the SPC and CBA are contracts governed by Section 301. Sherwin v.Indianapolis Colts, Inc., 752 F. Supp. 1172, 1177-1178 (1990);Rudnay v. Kansas CityChiefs Football, 100 Lab. Cas. (CCH) p. 10,936 (W.D. Mo. 1983);Dryer v. Los AngelesRams, 220 Cal. Rptr. 807 (Cal. 1985).

3 See 1975 CBA, Art. 7.02; 1981 CBA, Art. 7.02; 1984 CBA, Art. 7.02; 1988 CBA,Art. 7.02; 1995 CBA, Art. 30.2-30.3; 2005 CBA, Arts. 30.1-30.3; 2012 CBA, Arts. 30.1-

30.3.

In addition, a number of the underlying complaints filed in this action prior toconsolidation and the filing of the MAC expressly rely on and quote from the LeaguePlaying Rules, specifically Rules 41, 46 and 48. See, e.g., Christian v. NHL, No. 0:14-cv-01140-SRN-JSM (D. Minn. filed Apr. 15, 2014) at 81-93, 158-66; Leeman v. NHL,

No. 1:13-cv-01856-KBJ (D.D.C. filed Nov. 25, 2013) at 13, 112-15.



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may be assessed for violations of the Playing Rules); and (v) the role of the Union in

amending Playing Rules. The CBA and SPC also set forth dispute resolution procedures

to be followed in the event of a dispute arising thereunder.

In addition, in 1997, the NHL and Union agreed to launch the NHL-NHLPA

Concussion Program in order to improve the diagnosis, management and treatment of

Player concussions (the Concussion Program). (Daly Dec., Exh. 10) The MAC is

replete with allegations concerning the testing, return to play protocols and other aspects

of (or supposed deficiencies in) the Concussion Program, the creation of which is alleged

to be a source of the duty of care undertaken by the League. ( 11-15; 357-375; 401(b))

The contents of the Concussion Program are most certainly embraced by the pleadings

and are, therefore, properly before the Court on this motion to dismiss.4

The Concussion Program requires Players to undergo pre-season baseline

neuropsychological testing. SeeMAC 11. After a Player is diagnosed with a

concussion, he undergoes post-injury neuropsychological testing and his test results are

compared to his pre-season baseline neuropsychological test results to determine when

he returns to that baseline. (MAC 11, 372). In an October 28, 1997 memorandum to

Players (issued under NHL and Union logos), Dr. Mark Lovell and Dr. Alan Finlayson

(the NHLs and Unions appointed representatives, respectively) noted that while prior

attention had focused on bone and soft-tissue injuries, [r]ecently, attention has focused

4 Seesupra at fn. 1. See also Thunander, 887 F. Supp. 2d at 860, n.1 (when acomplaint quotes from or cites to particular supporting documents, it is good practice tofile any such supporting documents as exhibits to the complaint.)



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on the less obvious but nevertheless real consequences of concussion or mild brain

injury. (Daly Dec., Exh. 10) The parties advised Players that [t]he NHL and NHLPA

have agreed upon a new testing program.By taking baseline measurements now, it will

make it easier for you and your health advisors to help you make informed decisions later

if you sustain a concussion or mild brain injury. Id. The parties further advised Players

that

it is important that this recovery process is complete beforeengaging in high risk activity otherwise a second injury can

be much worse. Also with repeated minor brain injury the

risk that the temporary problems become permanentincreases. For hockey players this can affect the individualsability to perform well and ultimately their safety on the joband can increase the likelihood of further injury.

Id.

Thereafter, agreements between the NHL and the Union on policies and

procedures regarding the diagnosis, management and treatment of concussions

including return-to-play considerations were codified in written protocols. MAC,

372, 374. In January 2010, the NHL/NHLPA Concussion Working Group codified the

then-current policies and procedures regarding concussions into a single comprehensive

document (the NHL Concussion Evaluation and Management Protocol). (Daly Dec.,

Exh. 11) The MAC also refers expressly to revised protocols in 2011 and 2013 (MAC,

372, 374), both of which were collectively-bargained with the Union. (Daly Dec.,

Exhs. 12, 13, 14)



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ARGUMENT

PLAINTIFFS CLAIMS ARE PREEMPTED BY SECTION 301 OF THE LMRA

Plaintiffs state-law tort claims should be dismissed because they are preempted

by Section 301, which governs [s]uits for violation of contracts between an employer

and a labor organization representing employees. 29 U.S.C. 185(a).

A.

Section 301 of the LMRA preempts state-law claims that are either

founded on rights created by a CBA or that substantially depend on an

interpretation of a CBA.

Section 301 preempts two types of claims: claims founded directly on rights

created by [a] collective bargaining agreement[], and also claims substantially dependent

upon analysis of a collective bargaining agreement. Caterpillar, Inc. v. Williams, 482

U.S. 386, 394 (1987) (citingIntl Bhd. Electrical Workers v. Hechler, 481 U.S. 851, 859

n.3 (1987));Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 220 (1985).

The preemption doctrine flows from the principle articulated by the Supreme

Court that Section 301 authorizes federal courts to create a body of federal law for the

enforcement of collective bargaining agreements. Textile Workers Union v. Lincoln

Mills of Alabama, 353 U.S. 448, 451 (1957). As the Court later observed inAllis-

Chalmers, 471 U.S. at 210-211 (1985), allowing CBA terms to be given different

meanings under state and federal law would inevitably exert a disruptive influence upon

both the negotiation and administration of collective agreements. Thus, questions

relating to what the parties to a labor agreement agreed, and what legal consequences

were intended to flow from breaches of that agreement, must be resolved by reference to



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uniform federal law, whether such questions arise in the context of a suit for breach of

contract or in a suit alleging liability in tort.Id.

Accordingly, Section 301 preempts state law claims that are premised on duties

created by the relevant CBA such that they are based on the agreement. Williams v.

NFL, 582 F.3d 863, 881 (8th Cir. 2009); see also United Steelworkers of Am. v. Rawson,

495 U.S. 362, 369 (1990) (a state-law tort action against an employer may be pre-

empted by 301 if the duty to the employee of which the tort is a violation is created by a

collective-bargaining agreement.). Section 301 also preempts any claim (even one

arising independently of the CBA) that is substantially dependent upon an analysis of a

CBA or that is inextricably intertwined with the terms of a CBA. Caterpillar, 482 U.S.

at 395, Williams, 582 F.3d at 881; Trs. of the Twin City Bricklayers Fringe Benefit Funds

v. Superior Waterproofing, Inc., 450 F.3d 324, 334 (8th Cir. 2006).

B.

Plaintiffs negligence claims are preempted under both prongs of the

Section 301 analysis.

Plaintiffs assert a claim for negligence (Count III), as well as claims for

declaratory relief and medical monitoring (Counts I and II, respectively), each of which

also relies on an underlying negligence theory. (MAC 401, 409) In order to succeed,

Plaintiffs must show that the NHL voluntarily assumed a duty of care; and that the NHL

breached that duty by failing to keep Plaintiffs safe.5

5 InDuerson v. NFL,Inc., 2012 U.S. Dist. LEXIS 66378 at *8 (N.D. Ill. May 11,2012) the court observed that preemption analysis requires a case-by-case analysis of thestate-law claim as it relates to the CBA. (internal citation omitted). As inDuerson,however, the determination of which state law applies to the negligence-based claims is



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Every court that has had occasion to consider negligence claims of the kind

asserted in the MAC has held that the claims were preempted under one or both prongs of

the Section 301 analysis. Williams, 583 F. 3d at 863;Nelson ex. rel. Boogaard v. Natl

Hockey League, 2014 WL 656793 (N.D. Ill. Feb. 20, 2014);Duerson v. NFL, Inc., No. 12

C 2513, 2012 U.S. Dist. LEXIS 66378 at * 16 (N.D. Ill. May 11, 2012);Maxwell v. Natl

Football League Mgt. Council, No. CV 11-08394 (C.D. Cal. Dec. 8, 2011);Atwater v.

NFL Players Assn, 626 F.3d 1170 (11th Cir. 2010); Stringer v. NFL, 474 F. Supp. 2d

894 (S.D. Ohio 2007);Holmes v. NFL, 939 F. Supp. 517 (N.D. Tex. 1996); Sherwin v.

Indianapolis Colts, Inc., 752 F. Supp. 1172 (N.D.N.Y. 1990).6 The same conclusion is

mandated in the instant case.

1.

All of the duties that Plaintiffs claim the NHL voluntarily assumed arise

under agreements that were collectively bargained with the Union.

Plaintiffs claims are preempted because they are based on collectively-

bargained agreements between the NHL and the Union. Plaintiffs allege that the NHL

voluntarily assumeda duty to Players to protect them from head injuries and to disclose

not necessary here because a negligence claim in all states requires, in some form, theexistence of a duty, the breach of that duty, causation, and damages. Id. (citationomitted).

6

In Green v. Arizona Cardinals Football Club, No. 4:14CV461, 2014 WL 1920468at *5 (E.D. Mo. May 14, 2014), the court remanded a negligence claim against theemployer, rejecting the assertion that the claim was subject to Section 301 preemption.The complaint in Green, however, was not premised on a duty alleged to have beenvoluntarily undertaken, but rather on an employers common law duties [under Missourilaw] to maintain a safe working environment for employees. Thus, even assuming,arguendo, that Green was decided correctly, it is distinguishable from the instant case

because the NHL was never Plaintiffs employer.



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accurate information to them concerning the risks associated with head injuries, and that

the NHL was negligent in performing these duties. (MAC 401(b), 408-409, 421)

Every action that Plaintiffs identify as the basis for a voluntary assumption,

however, is an action that the NHL took in collective bargaining with the Union,

including: (a) instituting helmet requirements alleged to be inadequate (MAC, 9); (b)

undertaking the study of concussions under the Concussion Program and acquiring

knowledge that it failed to impart to the Players (MAC 12-13, 15, 102, 336, 401(b));

and (c) the Leagues supposed unilateral authority to promulgate Playing Rules and

enforce such Playing Rules via Player discipline and, by doing so, to dictate how NHL

hockey will be played. (MAC 331, 345, 354-56, 421) As discussed below, these

allegations are all rooted in obligations that arise (if at all) under the Leagues

collectively-bargained agreements with the Union. As such, the claims are preempted

under the first prong of the Section 301 analysis, i.e., they are based on collectively-

bargained agreements.

Indeed, labor law principles virtually dictate that the voluntary undertaking of a

duty in the context of a unionized environmentmustfind its roots in the parties

collectively-bargained agreement(s). The health and safety of NHL Players is a term or

condition of employment and is therefore a mandatory subject of collective bargaining

under the National Labor Relations Act (29 U.S.C. 151, et seq.)7 In the absence of a

7 See, e.g.,NLRB v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967) (safetyrules and practices which are undoubtedly conditions of employment are mandatorysubjects of bargaining);Library of Cong. v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983)



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unions waiver of the right to bargain, an employer cannot unilaterally implement

changes to terms or conditions of employment (including safety rules) without first

negotiating with the union and reaching either agreement or impasse; making a unilateral

change is otherwise an unfair labor practice under the NLRA. NLRB v. Katz, 369 U.S.

736 (1962).

Because of this, Plaintiffs claims are preempted.

a.

The collectively-bargained helmet requirement.

First, Plaintiffs allege that the NHL assum[ed] a duty as a guardian against head

trauma when it instituted the helmet requirement in 1979. (MAC 9) The helmet

requirement was in fact implemented pursuant to a collectively-bargained agreement

between the NHL and the Union.8 (Daly Dec., Exh. 15) Plaintiffs assertion that the

NHLs implementation of the helmet requirement constituted the voluntary assumption of

a duty is thus necessarily a claim that is based on a collectively-bargained agreement

(and is therefore preempted by Section 301).9

(noting that few policies and practices could be considered more central to anemployees working conditions than those relating to job safety and officeenvironment).

8

The parties agreed in collective bargaining to make helmets mandatory for allPlayers other than those who had signed contracts prior to June 1, 1979 and provided the

NHL and his Club with a release.

9 Section 301 encompasses agreements other than documents titled collectivebargaining agreements. InRetail Clerks Intl Assn v. Lion Dry Goods, Inc., 369 U.S.17, 2728 (1962), the Court held that Section 301 governed a negotiated agreement morelimited in scope than a traditional CBA because [i]t is enough that this is clearly an



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b.

The collectively-bargained Concussion Program.

Second, Plaintiffs allege that the League, acting in accord with its duty to the

players,created a concussion program[but] failed to discharge its assumed duty non-

negligently. (MAC 9) However, the Concussion Program, like the helmet

requirement, was created by agreement with the NHLPA, which, in 1997, joined hands

with the NHL in supporting the neuropsychological testing program and appointed its

own representative to the Concussion committee. (Daly Dec., Exh. 9) Indeed, the

NHL/NHLPA joint communication to Players announcing the launch of the Concussion

Program explained:

The NHL and NHLPA have agreed upon a new testing program whichwill evaluate this aspect of your overall health. By taking baselinemeasurements now, it will make it easier for you and your healthadvisers to help you make informed decisions later if you sustain aconcussion or mild brain injury.

(Daly Dec., Exh. 10)

The other actions that the League has taken with respect to concussions have also

been taken jointly with the Union. For example, the so-called 2011 Concussion

Program Report, which the Plaintiffs cite to repeatedly and condemn as supposedly

filled with shortcomings (MAC 10, 15-16, 107-123, 358-361, 364-365, 369-71) is on

its face an agreed-upon product of the joint NHL-NHLPA Concussion Program and

recites the fact that [i]n 1997, the [NHL] and [NHLPA] launched the NHL-NHLPA

agreement between employers and labor organizations significant to the maintenance ofpeace between them.



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Concussion Program to examine concussion from a scientific perspective and to better

understand its natural history and contribute new knowledge to the field. (Daly Dec.,

Exh. 16) The report was co-authored by the NHLPAs medical consultant, Dr. John

Rizos. Id. Indeed, the report specifically acknowledges the contributions of the NHL,

the NHLPA and the NHL-NHLPA Concussion Working Group. Id. at 911.

In addition, the 2009-2010 Concussion Evaluation and Management Protocol was

an agreement reached between and among the members of the joint NHL/NHLPA

Concussion Working Group. This Protocol defined concussions, required (as in the past)

baseline neuropsychological evaluations, set minimum standards for evaluation and

management of concussions, and affirmed that responsibility for fitness to play

determinations lies with team physicians. (Daly Dec., Exh. 11)

The March 2011 revisions to the Concussion Evaluation and Management

Protocol (referred to in MAC 372) were, as the Union confirmed, the product of

agreementreached with the League to introduce important clarifications to [the return

to play] process. (Daly Dec., Exh. 13) Likewise, the 2013 changes to the Protocol,

referred to in MAC 374, were in fact changes adopted by the NHL/NHLPA Concussion

Subcommittee pursuant to the NHL/NHLPA Concussion Evaluation and Management

Protocol. (Daly Dec., Exh. 14)

As is evident from the foregoing, the claim that the NHL voluntarily undertook

a duty of care [b]y voluntarily inserting itself into [the concussion] research and public

discourse (MAC 13), and that the League voluntarily assumed a duty to investigate,



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study, and truthfully report to the NHL playersthe medical risks associated with

hockey and brain injuries by creating the Concussion Program (MAC 15), is a claim

that is squarely based on collectively-bargained agreements and is therefore preempted

by Section 301.

c.

The collectively-bargained provisions concerning Playing Rules and

discipline.

Third, Plaintiffs claim that the NHL voluntarily assumed [a] duty of care and

power to govern player conduct on and off the ice because at all relevant times [it] was

in a position to influence and dictate how the game would be played and to define the

risks to which players would be exposed. (MAC 354-356) The MAC further alleges

that the NHL breached the assumed duty of care by failing to enact and enforce rules

covering dangerous body checks and fighting. (MAC 20, 237, 278, 280, 290, 300,

303-305, 329, 344(a), 384, 424(a))

The supposedly deficient Playing Rules and disciplinary procedures that lie at the

heart of this claim are part of the collectively-bargained terms and conditions of

employment. As set forth in Article 30.2 of the CBA, [e]ach Player shall be bound by

the Leagues Playing Rules to the extent that such rules are not in conflict with provisions

of this Agreement.10 Under Article 30.3, amendments to the Playing Rules may not be

made without the prior written consent of the NHLPA (not to be unreasonably

10 References to specific CBA articles in the body of the NHLs memorandum are,unless otherwise noted, to the 2012 CBA. Provisions similar to Article 30.2 appear in all

predecessor CBAs. See1975 CBA, Art. 7.02; 1981 CBA, Art. 7.02; 1984 CBA, Art.7.02; 1988 CBA, Art. 7.02(a); 1995 CBA, Art. 30.2; 2005 CBA, Art. 30.2.



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withheld).11 Under Article 22, the Player/Club Competition Committee (consisting of an

equal number of NHLPA and Club officials) is vested with authority to examin[e] and

mak[e] recommendations associated with issues affecting the game and the way the game

is played, including changes to the Playing Rules.12

The CBA governs not only what the Playing Rules are (and how they can be

changed), it also governs how they are enforced. Under Article 18 of the CBA, and its

predecessors, supplementary discipline (in the form of fines and suspensions) may be

imposed in accordance with the procedures and limitations set forth therein.13

2.

Because the alleged duties that underlie Plaintiffs negligence claims arise

under collectively-bargained agreements, those claims are preempted.

The Supreme Court made clear inAllis-Chalmersthat state-law rights and

obligations that do not exist independently of private agreements, and that as a result can

be waived or altered by agreement of private parties are pre-empted by those

agreements. 471 U.S. at 213. InAllis-Chalmers, the Court held that a tort claim of bad

faith handling of a disability insurance claim under a plan included in a collective

bargaining agreement was preempted by Section 301. The Court rejected the assertion

that the question of bad faith could be evaluated independently of the agreement, stating:

11 A similar provision appears in the 1995 and 2005 CBAs, at Article 30.3. The roleof the Union with respect to Playing Rules was also enumerated in predecessor CBAs.

See 1975 CBA, Art. 7.02; 1981 CBA, Art. 7.02; 1984 CBA, Art. 7.02; 1988 CBA, Art.7.02(a).

12 See also1995 CBA, Art. 22; 2005 CBA, Art. 22.

13 See also1975 CBA, Art. 4.09; 1981 CBA, Art. 4.08; 1984 CBA, Art. 4.08; 1988CBA, Art. 4.08; 1995 CBA, Art. 18, Exh. 8; 2005 CBA, Art. 18, Exh. 8.



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The assumption that the labor contract creates no implied rights is notone that state law may make. Rather, it is a question of federal contractinterpretation whether there was an obligation under this labor contractto provide the payments in a timely manner, and, if so, whether Allis-Chalmers conduct breached that implied contract provision.

* * *the Wisconsin courts statement that the tort was independent from acontract claim apparently was intended to mean no more than that theimplied duty to act in good faith is different from the explicit contractualduty to pay. Since the extent of either duty ultimately depends upon theterms of the agreement between the parties, both are tightly bound withquestions of contract interpretation that must be left to federal law.

* * *.Under Wisconsin law, the tort intrinsically relates to the nature andexistence of the contract.Thus the tort exists for breach of a duty

devolve[ed] upon the insurer by reasonable implication from the expressterms of the contract, the scope of which, crucially, is ascertained froma consideration of the contract itself..

* * *

The duties imposed and rights established through the state tort thus

derive from the rights and obligations established by the contract.

471 U.S. at 218 (emphasis added)

The Courts decision inRawson, 495 U.S. 362, applied the same analysis in a

negligence claim premised on an alleged voluntarily undertaken duty of care. The Court

held that the tort claim against a union (for negligent inspection of a mine) was

preempted by Section 301. The Idaho Supreme Court had held that the claim could go

forward because the unions duty to perform the inspection reasonably arose from the

fact of the inspection itself rather than the fact that the provision for the Unions

participation in mine inspection was contained in the labor contract. Id. at 370-371.

The Court rejected that conclusion:

As we see it,respondents tort claim cannot be described asindependent of the collective-bargaining agreement. This is not a



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situation where the Unions delegates are accused of acting in a way thatmight violate the duty of reasonable care owed to every person insociety..

Nor do we understand the Supreme Court of Idaho to have held that any

casual visitor in the mine would be liable for violating some duty to theminers if the visitor failed to report obvious defects to the appropriateauthorities. Indeed, the court did not disavow its previous opinion,where it acknowledged that the Unions representatives were

participating in the inspection process pursuant to the provisions of thecollective-bargaining agreement, and that the agreement determined thenature and scope of the Unions duty. If the Union failed to perform aduty in connection with inspection, it was a duty arising out of thecollective-bargaining agreement signed by the Union as the bargainingagent for the miners. Clearly, the enforcement of that agreement and the

remedies for its breach are matters governed by federal law.

Id. at 371.

It bears emphasis that Plaintiffs do not allege any general duty running from the

NHL to Players as a matter of law. Indeed, the duties that are alleged are not those that

would be owed to every person in society. United Steelworkers v. Rawson, 495 U.S.

362, 370-71.

Rather, the very essence of Plaintiffs claims is that the NHL voluntarily

assumed duties by virtue of agreements governed by Section 301. The claims are,

therefore, necessarily preempted. See Nelson v. NHL, 2014 WL656793, at *4 (citations

omitted) ([w]here, as here, the extent of a defendants voluntary undertaking is set forth

in a collective bargaining agreement, the voluntary undertaking claim by necessity is

inextricably intertwined with consideration of the terms of the labor contract,and thus

is completely preempted by 301 of the LMRA.)



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Had the Union been named as a party (or should it be brought into the case via

impleader), it would almost certainly raise Section 301 preemption as a defense, citing

bothRawsonandHechlerfor the proposition that a court would have to ascertain first,

whether the [CBA] in fact placed an implied duty of care on the Union to ensure a safe

workplace, and, second, the nature and scope of that duty. Hechler, 481 U.S. at 862. It

would make no sense if only one party to the CBA were covered by Section 301

preemption while the other party remained subject to state tort law.

3.

Because the collectively-bargained agreements must be interpreted to resolve

Plaintiffs negligence claims, those claims are preempted.

Plaintiffs negligence claims are in any event preempted under the second prong of

the Section 301 analysis because they cannot be resolved without interpreting the

collectively-bargained agreements between the NHL and the Union.

Williams governs this case. 582 F.3d at 881. There, two players for an NFL club

were suspended after testing positive for bumetanide, a substance banned under the

NFLs collectively-bargained drug policy. The players asserted a variety of claims,

including negligence, fraud and negligent misrepresentation based on the NFLs alleged

failure to advise them that StarCaps (the nutritional supplement they consumed)

contained bumetanide. The plaintiffs common-law claims were remarkably similar to

the claims advanced here: that the NFL had a common duty to the Williamses once it

sought and found out the dangerous fact that StarCaps contained Bumetanide (i.e., that

the NFL had superior knowledge) and that Minnesota law imposes a duty on one who

voluntarily undertook to act or speak. Williams, 582 F.3d at 881.



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The Eighth Circuit in Williamsdid not need to resolve whether the NFLs duty

arose under the CBA or the drug policy because there was no question that the court

would have been required to interpret those agreements to resolve plaintiffs claims.

[W]hether the NFL or the individual defendants owed the Players a duty to provide such

a warning cannot be determined without examining the parties legal relationship and

expectations as established by the CBA and the Policy. Williams, 582 F. 3d at 881.

Thus, the common law tort claims were inextricably intertwined with consideration of

the terms of those agreements. Because the claims relating to what the parties to a

labor agreement agreedmust be resolved by reference to uniform federal law, they are

preempted by section 301. Id. (citing Allis-Chalmers, 471 U.S. at 211).

The decision inDuerson v. National Football League, 2012 U.S. Dist. LEXIS

66378 at *16, is also instructive. There too, the court held that Section 301 preempted

state law negligence claims similar to those presented here, in particular, claims that the

NFL had negligently caused David Duersons CTE and death by, among other things,

failing to educate players about the risks of concussions and the dangers of continuing to

play after suffering head trauma, failing to ensure rapid diagnosis and treatment of David

Duersons condition, and failing to implement policies to prevent David Duerson from

returning to play with his injuries. Id.at 4. The court so held because resolution of the

claim would require interpretation of multiple CBA provisions concerning player health

and safety that were directly relevant to the particular duty at issue. Id. at *5. The

court emphasized that the CBA provisions which assigned various safety-related



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responsibilities to NFL club physicians and trainers could plausibly lead to an

interpretation that those provisions impose a duty on the NFLs clubs to monitor a

players health and fitness to continue to play football. That interpretation, in turn:

would tend to show that the NFL could reasonably rely on the clubs tonotice and diagnose player health problems arising from playing in the

NFL. The NFL could then reasonably exercise a lower standard of carein that area itself. Determining the meaning of the CBA provisions isthus necessary to resolve Duersons negligence claim.

Id. at 11.

In yet another similar case, Stringer v. NFL, the court applied the same logic to

dismiss a wrongful death claim arising out of Stringers death from heatstroke during

training camp. The plaintiff in Stringeralleged that the NFL had breached a voluntarily

assumed duty to use ordinary care in overseeing, controlling, and regulating practices,

policies, procedures, equipment, working conditions and culture of the NFL teamsto

minimize the risk of heat-related illness. Id. at 899. The court held the claim preempted

because the question of whether the NFL had been negligent was inextricably

intertwined with certain key provisions of the CBA. The court noted that the CBA

places primary responsibility for treating players on the club physicians and that those

provisions mustbe taken into account in determining the degree of care owed by the

NFL and what was reasonable under the circumstances. Id. at 910-11. In other words,

the degree of care owed cannot be considered in a vacuum but instead must be

considered in light of pre-existing contractual duties imposed by the CBA on the



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individual NFL clubs concerning the general health and safety of the NFL players. Id.

at 910.

The negligence claims here are likewise substantially dependent on an analysis of

the CBA and the collectively-bargained agreements that form the Concussion Program.

As in Williams,Duerson and Stringer, even if the Court were to hold that the voluntarily

assumed duties alleged in the MAC arose independently of these agreements, the

necessity of interpreting [the agreements] to determine the standard of care still leads to

preemption. Duersonat *12.

a.

Plaintiffs claims are inextricably intertwined with the CBA

provisions concerning Player health and safety.

Every CBA has delineated an allocation of responsibilities for reporting and

treating injuries, and for making fitness-to-play determinations. The critical terms are

contained in paragraph 5 of the collectively-bargained SPC (and, since 2005, in Article

17.7 of the CBA): it is the Players responsibility to report an injury and to submit

himself for examination and treatment by a Club physician. After the Club physician

determines that the Player is fit or unfit to play, the Player may seek a second opinion. If

the second opinion physician agrees with the determination of the Club physician, that

determination is binding. If they disagree, a third physician is appointed and renders a

determination that is binding. Seesupraat fn. 2.

The CBA also addresses the right of Players to receive their medical records.

Under Article 23.10:



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At the conclusion of each season, the Club shall provide each Playerwith a complete copy of his medical records at the time of his annual exit

physical (to the extent the Club maintains physical possession of thePlayers medical records; otherwise the Clubs physician will provide thePlayer with a complete copy of his medical records upon the Players

direction to do so). The exit physical shall document all injuries thatmay require future medical or dental treatment either in the nearfuture or post-career. The Club shall remain responsible for thepayment of medical and dental costs associated with treatmentof suchhockey-related injuries at such future date. (Emphasis added.)14

Additional CBA provisions also allocate responsibilities to the Clubs for

compensation and benefits in the event of hockey-related injuries. For instance, Clubs

are required to fund a medical plan for Players; maintain life and disability insurance for

career ending disabilities; and obtain workers compensation coverage in states where it

is not compulsory or required for professional athletes.15

Plaintiffs claim here is that the NHL owed a duty to protect Players safety by

virtue of its voluntary undertaking to do so; that NHL personnel and League medical

directors, supervisors, doctors and trainers failed to satisfy that duty (MAC 84, 127);

and that NHL-approved doctors and trainers failed to protect Players from a premature

return to hockey-related activities following a concussion. (MAC 94-96, 128, 136,

360, 414, 424) As inDuerson, in order to determine the accuracy of these allegations

14 See also2005 CBA, Art. 23.10.

15 See 1975 CBA, Arts. 12, 14; 1981 CBA, Arts. 12, 14; 1984 CBA, Arts. 12, 14;1988 CBA, Arts. 12, 14; 1995 CBA, Art. 23; 2005 CBA, Arts. 23, 31.5; 2012 CBA, Arts.23, 31.5.

Since 2012, moreover, the CBA has expressly stated that [e]ach Club shallprovide its Players with high quality health care appropriate to their needs as eliteprofessional hockey players. See 2012 CBA, Art. 34.1(a).



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and reasonableness of the NHLs conduct, the Court would have to determine, inter alia,

whether in light of the express delegation in the CBAs and SPCs of responsibility to the

Clubs and Club physicians (as well as second and third opinion physicians), it was

reasonable for the NHL to rely on those determinations or whether the NHL had an

obligation to question the Clubs determination, retain its own physicians to monitor

practices and games, and/or advise individual injured Players on the potential long-term

consequences of concussions.

b.

Plaintiffs claims require interpretation of the collectively-

bargained Concussion Program.

Plaintiffs claims are also substantially dependent on an analysis of the

collectively-bargained Concussion Program. Indeed, given the extensive references to

the NHLs actions (and alleged inaction) pursuant to the Program, it is apparent from the

face of the MAC itself that the negligence claims are inextricably intertwined with the

Program. The MAC repeatedly purports to find fault with a variety of aspects of the

Program, including: the NHLs purported failure to follow the when in doubt, sit them

out philosophy (MAC 372); and the absence of a requirement to have a neurosurgeon

available at games (MAC 375). To decide Plaintiffs claims, the Court would have to

determine whether those supposed omissions were reasonable in light of the Program as a

whole. In addition, the Court would have to determine whether the collectively-

bargained Concussion Program created a unilateral obligation on the NHL to:



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(i)

make the game of professional hockey safer for the players and to keep the

players informed of safety information, particularly about concussions and

head injuries (MAC 345);

(ii)

publish reports discussing mild traumatic brain injury (MTBI) and to make

statements of substance on the issues of concussions and post-concussion

syndrome (MAC 366, 368);

(iii)

disclose to its players what [the NHL] learned at [annual international

symposia] concerning concussions (MAC 367);

(iv)

analyze the causes of concussions, such as fighting and equipment (MAC

371);

(v) educate players on the devastating impact of repeated trauma. (MAC 364)

The Court would not only have to interpret the Concussion Program to determine

whether these obligations were created, the Court would then have to determine whether

the League had satisfied any such obligations. For example, the joint NHL/NHLPA

memorandum to Players informing them of the new testing program contained the

following agreed-upon text:

Most people recover quickly from a minor brain injury and resume their

previous activities shortly after the incident. However, it is importantthat this recovery process is complete before engaging in high riskactivity otherwise a second injury can be much worse. Also withrepeated minor brain injury the risk that the temporary problems become

permanent increases. For hockey players this can affect the individualsability to perform well and ultimately their safety on the job and canincrease the likelihood of further injury.



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The Court would have to construe whether this text satisfies the NHLs supposed duty to

inform Players of the potentially harmful effects of concussions or whether there was in

fact a failure to inform Players of the actual increased risks to long-term brain health

(MAC 268) from concussions. The Court would also have to construe the following

text contained in the same memorandum:

The results of these tests will form a baseline for later comparison if, andonly if, you should suffer a concussion. By comparing the levels of the

before injury and after injury examinations, the psychologist can

evaluate any change from your previous levels. This information, alongwith other physical and medical information will helpthose responsiblefor your health carehelp you to determine if it is safe for you to resumeplaying.

Daly Dec., Exh.10 (emphasis added). The highlighted language does not identify those

responsible for the Players health care but implies that it is somebody other than the

NHL and NHLPA. The Court could plausibly interpret this language as placing the

Players on notice that the League was not responsible for their safety and health.

In fact, the collectively-bargained January 2010 Concussion Evaluation and

Management Protocol consistent with the CBAs and SPCs allocated responsibility for

making return to play decisions to the Clubs and Club physicians. Indeed, the Protocol

stated that [a] central factor in this protocol is that the diagnosis of concussion and

subsequent return to play following a concussion is an individual decision made by the

team physician using all information available to him. (Daly Dec., Exh. 11) Thus, the

Court would again be required to determine whether this allocation of responsibility to



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punishments,.have successfully curbed violent fights from breaking out in their

games, and essentially eliminated all fighting in the sport. (MAC 299)

Again, a decision on Plaintiffs claims would be substantially dependent on an

analysis of the CBA and collectively-bargained Playing Rules (which penalize fighting

and other on-ice conduct) and disciplinary procedures. Notwithstanding the assertion that

the NHL has the unilateral authority to protect[] players by disciplining violent

conduct (MAC 331), the CBA imposes limitations on the Leagues authority and

dictates the procedures and standards that apply both to changing Rules and imposing

discipline. Because the Court would be required to interpret all of these provisions to

adjudicate Plaintiffs claims, those claims are preempted.

The Playing Rules are incorporated into the CBA by virtue of Article 30.2 (which

binds each Player to the Playing Rules) a provision that appeared in all prior CBAs (see

supraat fn. 10) and Article 30.3, which provides that the League may not change

Playing Rules without the written consent of the NHLPA, not to be unreasonably

withheld. See supraat fn. 11. The Playing Rules themselves define a range of conduct

denominated as physical fouls (e.g., boarding, fighting, and illegal checks to the

head); state that violations may be punished with major, minor, match or game

misconduct penalties; and allow for supplementary discipline by the Commissioner of

the NHL. (Daly Dec., Exh. 17)

Supplementary discipline for violation of Playing Rules (in the form of fines or

suspensions) is governed by Article 18 of the 2012 CBA (and Article 18 and Exhibit 8 of



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its predecessors). Among other things, Article 18 sets forth the factors to be considered

in determining the quantum of supplementary discipline, specifying that the League shall

assess: the type of conduct involved, the extent of any injury to the opposing Player,

whether the offending Player is a repeat offender, the situation of the game in which the

incident occurred, and such other factors as may be appropriate in the circumstances.

See also supra at fn. 13.

Article 22 of the CBA establishes a Player/Club Competition Committee

consisting of an equal number of NHL and NHLPA representatives to address, among

other things, the development, change, and enforcement of Playing Rules and Player

equipment regulations and standards. The CBA provides that the Competition

Committees role is to evaluate and make recommendations on matters relating to the

game and the way the game is played, including [the matters referred to above] and any

other matter that may be brought to the Competition Committees attention with the

consent of the NHL and the NHLPA. See alsosupra atfn. 12.

In short, the collectively-bargained structure establishes: the Rules by which the

game is played; the standards used to assess supplementary discipline for violating those

Rules; and a mechanism for considering changes to the Rules. A determination of

Plaintiffs claims would be substantially dependent on an analysis of these aspects of the

CBA. Among other things, the Court would have to:



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1.

Apportion the relative responsibilities of the League, the Union and the

Competition Committee in the Rule-making and enforcement process in order to

determine the nature and scope of the NHLs duty.

2.

Interpret the Rules to determine whether the NHL should have imposed discipline

(or greater discipline) under the collectively-bargained disciplinary process for a

variety of incidents that the MAC alleges should have been penalized (or

penalized more harshly). (MAC 251-252, 253-254, 257-259, 284-287)

3.

Interpret Article 18 of the CBA to determine supplementary discipline the NHL

could have imposed for fighting.

4.

Evaluate the sufficiency of the NHLs Playing Rules as measured against the rules

of other professional and amateur hockey leagues, as well as the rules in an

entirely different sport (the National Basketball Association) in order to determine

whether the Rules are reasonable in light of the similarities and differences in the

games. (MAC 290-299)

Clearly, the Court would have to do more than simply consult the CBA to

answer these questions. Allis Chalmers, 471 U.S. at 218.

d. Plaintiffs claims are dependent on an interpretation of the CBAs

management rights clause.

Finally, the myriad allegations in the Complaint that the NHL failed to act with

respect to Player health and safety issues are also dependent on an interpretation of the

management rights clause in the CBA. For instance, Plaintiffs allege, among other



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things, that the NHL took no action to reduce the number and severity of concussions

among its players (MAC 12); that it failed to implement procedures requiring players

to sit out, and obtain proper evaluations, treatments, clearances and advice before

returning to action (MAC 94); and that it unilaterally assumed the role of protecting

players and informing players of safety concerns. (MAC 331) Because there can be no

dispute that Player health and safety issues are mandatory subjects of bargaining (see

supraat pp. 10-11, fn. 7), Plaintiffs claims that the NHL failed to change Players terms

and conditions of employment will require this Court to interpret the CBAs

management rights clause to determine whether the Union clearly and unmistakably

waived its right to bargain over these subjects.16 See Metropolitan Edison Co. v. NLRB,

460 U.S. 693, 708 (1983).

Indeed, only if the management rights clause allowed the NHL to unilaterally

implement policies and procedures affecting the health and safety of Players can the

alleged failure to do so be deemed unreasonable an essential element of Plaintiffs

16 The management rights clause states, in pertinent part:

Each Club, and, where appropriate, the League . . .have the right at anytime and from time to time to determine when, where, how and under whatcircumstances it wishes to operate, suspend, discontinue, sell or move andto determine the manner and the rules by which its team shall playhockey

A Club, and where appropriate the League, may take any action not inviolation of any applicable provision of this Agreement, any SPC, or law inthe exercise of its management rights.

2012 CBA, Art. 5. See also1975 CBA, Art. 11.01; 1981 CBA, Art 11.01; 1984 CBA,Art. 11.01; 1988 CBA, Art 11.01; 1995 CBA, Art. 5; 2005 CBA, Art. 5.



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negligence claims. See, e.g., Chapple v. National Starch & Chem. Co., 178 F.3d 501,

508 (7th Cir. 1999) (whether the company acted properly would require a court to

decide if the employer was acting within the scope of the management rights clause of

the collective bargaining agreement and noting that [t]his circuit has repeatedly held

that such claims are preempted by Section 301); Panayi v. Northern Ind. Pub. Serv. Co.,

109 F. Supp. 2d 1012, 1016 (N.D. Ind. 2000) (finding preemption and dismissing

complaint because the court will have to decide whether [management rights] clause

gives [employer] rights under the collective bargaining agreement allowing them to

promulgate and enforce rules.)17

C.

Plaintiffs Fraud And Negligent Misrepresentation Claims Are Preempted

Under Both Prongs Of The Section 301 Analysis.

Plaintiffs assert claims for negligent misrepresentation by omission (Count IV),

fraudulent concealment (Count V) and fraud by omission/failure to warn (Count VI).18

The negligent misrepresentation claim is premised on a supposed special relationship

between the NHL and the Plaintiffs created by the Leagues superior special

17 InBogan v. GM, 500 F.3d 828 (8th Cir. 2007), the court declined to findpreemption based on a management rights clause because the employer relied on thatclause as adefenseto plaintiffs claim of intentional infliction of emotion distress i.e.,that GMs conduct was justified in light of the CBAs management rights clause thatallowed it to act in ways that were alleged to be unlawful. Id. at 832-33. Here, theopposite is true. The NHL is not relying on the management rights clause to justify its

actions as a defense to Plaintiffs claims. Rather, because Plaintiffs must establish thatthe NHL unreasonably failed to act with respect to mandatory subjects of bargaining, itmust first establish that the NHL had the authority to take the actions that Plaintiffs allegeshould have been taken.

18 Plaintiffs claims for declaratory relief and medical monitoring (Counts I and II,respectively), also rely on underlying fraud and misrepresentation theories. (MAC 401, 409)



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knowledge of medical information that it failed to communicate. (MAC 429)

According to the Complaint, the Plaintiffs justifiably relied on the NHLs negligent

misrepresentations by omission to their detriment. (MAC 432) The fraudulent

concealment claim alleges that the NHL knowingly concealed information concerning the

risks of head injuries and that the Plaintiffs reasonably relied on the Leagues silence

and that, if they had been properly informed, they would have ensured that they received

appropriate medical treatment and ensured that they were completely healthy and their

brains had completely healed before returning to play. (MAC 441, 443) The fraud

by omission/failure to warn claim essentially repeats the same allegations. (MAC

447-454)

Plaintiffs allegations that the NHL voluntarily assumed a duty to disclose

information to Players are inseparable from their allegations concerning the voluntarily

assumed duty of care. See, e.g., MAC 153 (Because the League assumed a duty of

care to Plaintiffs, assuming duties of protection and disclosure); id. at 345 (The NHL

assumed the duty to make the game of professional hockey safer for the players and to

keep the players informed of safety information). For the reasons discussed above,

because these alleged voluntarily assumed duties arise under agreements that were

collectively bargained with the Union, the fraud and misrepresentation claims are

preempted under the first prong of the Section 301 analysis.



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In any case, Plaintiffs fraud and misrepresentation claims are also preempted

because they are substantially dependent on interpretations of collectively-bargained

agreements.

Williamsis dispositive. The plaintiffs there alleged fraud and negligent

misrepresentation claims in addition to their negligence and breach of fiduciary duty

claims. The Eighth Circuit held that all the tort claims were preempted by Section 301,

noting that the fraud claims required proof of justifiable reliance on the defendants

alleged misleading statements. [H]ere, the question of whether the Players can show

that they reasonably relied on the lack of a warning that StarCaps contained bumetanide

cannot be ascertained apart from the terms of the PolicyBecause resolving the Players

misrepresentation claims will require interpretation of the Policy, they are preempted by

section 301. Williams, 582 F.3d at 882.

The Williams court relied on Trs. Of the Twin City Bricklayers Fringe Benefit

Funds, 450 F.3d at 332. There, the Court also held that the plaintiffs fraudulent and

negligent misrepresentation claims were preempted by Section 301. In doing so, the

Court observed that [w]hether a plaintiffs reliance was justifiable is determined in light

of the specific information and experience it had and that the trier of fact would have to

examine the provisions of the CBA to establish whether the plaintiff met its burden of

proving justifiable reliance. Id. at 332.

Other courts have also routinely dismissed negligent or fraudulent

misrepresentation claims as preempted where the claim required analysis of collectively-



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bargained agreements to determine the nature and scope of the defendants alleged duty

to disclose and/or whether the plaintiff justifiably relied on the defendants omissions or

misrepresentations. Section 301s preemptive force extends to fraud claims when

resolution of the claims is inextricably intertwined with terms in a labor contract.

Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1016 (9th Cir. 2000); Sherwin,

752 F. Supp. at 1177-1179 (holding fraud and negligent misrepresentation claims

preempted where the claims could not be resolved without reference to CBA provisions

establishing the duties of club physicians, and arguably the club, to inform a player of

physical conditions that could adversely affect his health).

Here, Plaintiffs allege that they relied on the NHL with its cadre of highly

educatedmedical personnel (MAC 132) to provide advice concerning safety and

health both in the short and long term. (MAC 12, 89-90, 92-93, 99-100, 125, 135, 151,

339, 352, 360, 441, 451) Plaintiffs assert that they acted reasonably in relying on

League personnel and League-approved medical personnel, trainers and coaches, to

provide them with information important to their health and well-being (MAC 342)

and that they relied on the NHLs silence concerning concussions, subconcussive

impacts and other head injuries to conclude that it was safe to continue playing after such

injuries, even if their symptoms had not resolved. (MAC 90).

The existence of a special relationship between the League and the Players

cannot be determined without an examination of the collectively-bargained terms and

conditions governing health and safety; nor can there be a determination concerning



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35

justifiable reliance on the Leagues statements (or omissions) without interpreting the

CBA and SPC. As discussed in detail above, the CBA and SPC (as well as the

Concussion Program) allocate responsibilities to the Clubs and Club physicians not to

the NHL including the obligation to treat Players following injuries and to make

fitness-to-play determinations (which are in turn subject to challenge and determination

following a second opinion and a third opinion, if necessary); and the obligation of the

Club and the physician (but not the League) to supply each Player with his medical

records and to provide an exit physical that shall document all injuries that may require

future medical or dental treatment either in the near future or post-career. See supraat

pp. 13, 21-22, fn. 14.

D. Once Held Preempted, All Claims Must Be Dismissed.

Once a claim is held to be preempted by Section 301, that claim must either be

treated as a Section 301 claim, or dismissed. See Allis-Chalmers Corp.,471 U.S. at 220.

Plaintiffs claims here should be dismissed for two separate and independent reasons.

First, the state-law tort claims alleged in the MAC must be dismissed because they

are not cognizable Section 301 claims. See, e.g., Granite Rock Co. v. Int'l Bhd. of

Teamsters, 561 U.S. 287, 311 (2010) (federal courts authority to create a federal

common law of collective bargaining agreements under section 301 should be confined to

a common law of contracts, not a source of independent rights, let alone tort rights; for

section 301 is . . . a grant of jurisdiction only to enforce contracts) (citations omitted).

The Court should follow the lead of multiple other courts in this Circuit and dismiss



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Plaintiffs tort claims as preempted. See Trs. of the Twin City Bricklayers Fringe Benefit

Funds, 450 F.3d at 324 (8th Cir. 2006); Finney v. GDX Auto., 135 Fed. Appx. 888 (8th

Cir. 2005); Conrad v. Xcel Energy, Inc., No. 12-CV-2819, 2013 U.S. Dist. LEXIS 49840

at * 19 (D. Minn. Apr. 5, 2013).

Second, Plaintiffs have failed to exhaust the mandatory grievance procedures

established by the CBA. Before commencing an action alleging a breach of the labor

contract, the employee is required to exhaust any contractual grievance and arbitration

procedures provided for in the collective bargaining agreement between the employer and

the union. SeeRepublic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965); see also Allis-

Chalmers, 471 U.S. at 219-21.

If a party fails to exhaust mandatory grievance procedures, dismissal is required

unless it can be said with positive assurance that the arbitration provisions are not

susceptible of an interpretation that covers the asserted dispute, with any doubts about

arbitrability resolved in favor of coverage. See Local Union 453 of IBEW v.

Independent Broad. Co., 849 F.2d 328, 331 (8th Cir. 1988) (quoting Steelworkers of

America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)). When an

agreement includes a broad arbitration clause, only an express provision excluding a

particular grievance or the most forceful evidence of a purpose to exclude the claim

from arbitration will overcome the presumption of arbitrability. Teamsters Local Union

No. 688 v. Industrial Wire Prods., 186 F.3d 878, 882 (8th Cir. 1999) (internal citation

omitted).



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Here, Article 17 of the CBA contains a broad arbitration clause requiring the

arbitration of any grievance defined as any dispute involving the interpretation or

application of, or compliance with, any provision of [the CBA], including any SPC.

Such grievances will be resolved exclusively in accordance with the arbitration

procedure set forth in Article 17.19 Because Plaintiffs cannot point to any language in

any of the applicable arbitration provisions suggesting that their purported claims are

excluded from arbitration, the MAC should be dismissed.

19 See also1975 CBA, Art. 4; 1981 CBA, Art. 4; 1984 CBA, Art. 4; 1988 CBA, Art.4; 1995 CBA, Art. 17; 2005 CBA, Art. 17.



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CONCLUSION

For the foregoing reasons, the MAC should be dismissed in its entirety with

prejudice.

Dated: November 18, 2014

Joseph Baumgarten Respectfully submitted,Adam M. LupionPROSKAUER ROSE LLP s/Daniel J. ConnollyEleven Times Square Daniel J. Connolly (#197427)

New York, New York 10036-8299 Joseph M. Price (#88201)Telephone: (212) 969-3000 Linda S. Svitak (#178500)

Aaron D. Van Oort (#315539)John H. Beisner FAEGRE BAKER DANIELS LLPJessica D. Miller 2200 Wells Fargo CenterSKADDEN, ARPS, SLATE, 90 South Seventh StreetMEAGHER & FLOM LLP Minneapolis, MN 554011440 New York Avenue, N.W. Telephone: (612) 766-7000Washington, D.C. 20005-2111Telephone: (202) 371-7000

Shepard Goldfein

James A. KeyteMatthew M. Martino

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLPFour Times Square

New York, New York 10036-6522Telephone: (212) 735-3000


NHL Motion to Dismiss Concussion Litigation

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